Bar Owner Not Liable for Conduct of Worker Who Drove Drunk

Friday, November 4, 2016

Page 1

Bar Owner Not Liable for Conduct of Worker Who Drove Drunk—Court of Appeal

By a MetNews Staff Writer

A security guard at a bar was not acting within the course and scope of employment when he drove home drunk, hitting a tree and killing his girlfriend, the Court of Appeal for this district has ruled.

Div. Eight Monday affirmed a ruling by Los Angeles Superior Court Judge Elia Weinbach, granting summary judgment in favor of The Little Rock, Inc., owner of The Little Rock Bar and Grill in Tarzana. The action stems from an incident in December 2011.

The bar has since been remodeled and revamped into the Dark Horse Tavern.

Amber Wuebel’s parents sued the bar owner after she was killed at the age of 20. Her boyfriend, Jorge Jimenez, was driving with a blood alcohol level of .12, according to a toxicology report.

He also tested positive for marijuana and methamphetamine.

The plaintiffs alleged that The Little Rock encouraged employees to drink on the job as a means of establishing relationships with customers. Among other things, they said, the bar gave every employee a free drink after his or shift and allowed him or her to purchase unlimited drinks afterward and gave out free drink tickets to customers and employees on their birthdays and on other occasions.

Jimenez was not working the night of the crash, but the complaint alleged that he came to the bar to drop off a set of keys, and stayed to have several drinks before leaving with Wuebel.

These practices, the complaint alleged, fostered a relationship between employees and customers that benefited the bar, making Jimenez’s intoxication foreseeable and causing Wuebel’s death.

Weinbach found no evidence Jimenez was acting in the course and scope of employment at the time of the crash. Presiding Justice Tricia Bigelow, in an unpublished opinion for the Court of Appeal, agreed.

“…Amber’s parents have failed to fulfill their burden to show the requisite nexus between Jimenez’s negligence and his job as a security guard,” the presiding justice wrote. “Jimenez was tasked with monitoring the bar for drunk or unruly guests, escorting them from the premises if necessary, and locking the alarm near the back door on occasion. His conduct on the night of December 13, 2011—becoming intoxicated and causing Amber’s death—was unconnected with his employment.”

She distinguished cases, such as Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608 and McCarty v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 677, which have held that employees who drank at their workplaces were acting in the course of employment when they were involved in subsequent incidents.

Rodgers held that an employer whose employees became intoxicated after their shifts and assaulted two victims at a construction site was liable for the victims’ injuries. McCarty held that death benefits were payable when an intoxicated employee was killed as a result of driving into a light pole after a company Christmas party.

In order to find that Jimenez was acting in the course of employment under those cases, Bigelow explained, the plaintiffs had to show that his drinking at the bar benefitted the defendant or had become a customary incident to his job.

The evidence they presented was insufficient to make that showing, the presiding justice said.

There was, she concluded, no proof that employees were provided with free drinks in order to make up for low salaries or to improve morale. She added that there was no evidence Jimenez received free drinks the night of the crash; surveillance video and declarations from the bartenders suggested that he paid for at least one drink and that other bar patrons bought drinks for him.

Nor, she said, was there evidence that company business was being discussed at the bar that night or that the employer required or expected employees to be present to celebrate Jimenez’s birthday, distinguishing the situation from the Christmas party in McCarty, she said.

Attorneys on appeal in Moore v. The Little Rock, Inc., B22621, were James R. Noblin, Matthew E. Hess, Donald R. Liddy and David R. Shoop for the plaintiffs and Jack L. Henningsen of Turner Aubert & Friedman for the defendant.